This thread in the Game Room reminded me of this question. It says that Microsoft prohibits games requiring the Hard Drive from appearing on their consoles. I’ve heard similar ideals expressed when it comes to AO rated games (as far as I understand none of the three system allow them, at least not the 360 or Wii from what I hear).
I’m not really asking out of any dislike for the practice, I just want to understand the legalities of this, especially since these are distributed in multiple nations, which always tends to make things more fun. I’d assume it’s a similar idea as how the SDMB can (if they so choose) prohibit the discussion of certain topics, but I’m seeing a slight difference between a medium on which things can be presented and a service which we actively participate in (though I suppose you could argue the SDMB is just a medium to present ideas).
As an extension of the question, how far does this extend? To use a somewhat related example can Microsoft say that no program that does X or Y be allowed to work on a Windows OS? To further this into a little wilder categories:
Could I invent an instrument and then tell everyone they can’t, say, write any song written in b-minor for it?
Could I invent a new type of paper and tell artists oil pastels are strictly prohibited? The color blue maybe?
I’m sure I could come up with numerous, and probably even wilder examples, but I think I’ve given everyone enough material to work with.
There is legally prohibiting things and technically prohibiting things. It is pretty easy technically to prohibit non licensees from putting out games for a console. Just deliver a console with an operating system that will only play games that have been digitally signed. Provided you have people building the hardware and writing the OS digital under your control singing cannot be realistically be cracked these days with modern signing algorithms. Basically the console will not play the game if when the game is loaded there is not a proper encrypted checksum. The company that produces the console is the one that gives the encrypted checksum to the third party publisher. Without the checksum the game will not play.
The question if this sort of thing is legal is a different question which I am not able to comment on.
There’s a really long list of technical restrictions and requirements for every game that uses the 360 system, and in order for your game to get through testing and final approval, it has to pass them all. Most of them have some understandable purpose relating to game function (eg. if not all 360 units are sold with a hard drive, then games can’t require it), so I’m not sure that legality is a factor there, but in any case, as a developer you always have a choice: comply, or take your project elsewhere.
As others here have said, console manufacturers and game distributors can simply refuse to approve and release games containing objectionable material or unacceptable specs. I work on localization for cell phone games. The list of banned words and situations for US carriers would make your head spin. For example, for the games with which I’ve been involved, any mention of alcohol or alcohol consumption is forbidden. You can make a strip poker game set in bars, but if you mention a drink it must be non-alcoholic. Is this censorship? Of course. Ridiculous? Also of course. Are the carriers allowed to do this? You bet. It’s up to the studios to either follow the rules or end up with unreleasable games.
I believe it was Nintendo that started all this back with the snes (or maybe nes). At the time, some companies came out with hack cartridges with a second socket built in. You had to put in a legit game to let the console boot, and then the other game could be played.
In part this was actually a response to all the shitty games that would come out that would be thrown on the public. In particular, things came to a head with the ET game that banked on the wildly successful movie but was one of the worst games of all time. Combined with press coverage of how bad it was, this game actually lead to a worldwide slump in game sales that would last something like a year.
But absolute power corrupts absolutely. Once the system was in place to tell publishers what to do, it could be used for any objective with little cost or consequence. It’s kind of why we can’t make it easy for the police to enforce laws by using wiretapping etc. At first they’re just ‘catching the bad guys. what do you have to worry about?’ but very soon the net is expanded.
Protections in an attempt to prevent unauthorized games from playing on a given system predate Nintendo-- Texas Instruments with late models of the TI-99/4a ('81?) is the earliest example I know of, and Mattel intentionally crippled early Coleco releases when they released their Intellivision II-- but I think Nintendo was the first to combine system lock-outs with a specific requirement for licensed games to follow moral codes.
The current DMCA restrictions on bypassing protections makes current restrictions more difficult to bypass than in years past, I believe. You could get unlicensed adult games for many a protected console before the DMCA, but manufacturers now hold most of the cards when it comes to game releases. (IANAL and will happily defer this opinion to someone more knowledgable on current interpretatons of the law.)
I’m not a lawyer but I understand how American law works in general.
First, we have to assume you have a patent for this invention; otherwise you have no way to control their use at all. Second, it is not the patent itself that lets you dictate how your inventions can be used, but the conditions under which you give the invention to others. So if you wanted to keep people from playing a song in B-minor on your patented instrument, you could insist on having them sign an agreement to that effect before you sold them the instrument. Alternatively, you could sell them not the instrument itself, but merely a license to use it within certain constraints. This is what software companies do: you’re not actually buying a copy of Microsoft Windows, but a license to install and use the program on your computer.
I’m not sure if it would be legally possible to prevent a composer from simply writing a tune in B-flat for your instrument, since the composer doesn’t need to own the instrument, or even the right to play it, in order to write a song. I suppose you could trademark the name of the instrument, but that would only force the composer or his publisher to come up with a generic description of it.
Once your patent expires, you no longer have any real control over the invention’s use, since you no longer have a monopoly on its sale. If your conditions are too restrictive, other people will just produce their own versions of the device and sell them with no strings attached. At this point your only hope is to (a) invent a new version of the instrument with a new patent and (b) form a lobbying group and try to convince Congress to make your restrictions law.
In general, of course, the manufacturer of a console is free to include technical restrictions in his product preventing certain software from running. It might, however, collide with applicable competition/antitrust law.
Microsoft had such problems in both the European Union and the United States. In both instances, the case was, among other criticism, about Microsoft’s practice of bundling Windows with the Internet Explorer, increasing the IE’s market share in the browser war against Netshape significantly; another issue was the allegiation that the Windows interfaces browsers used were designed so they favored IE over competing browsers. There were also similar allegiations about Windows Media Player.
Both cases ended up with Microsoft at least partially losing. With regards to Europe, they had to publish relevant source codes, launch modified Windows versions and pay a record fine of 497 million euros imposed by the European Commission. This was upheld when challenged in court.
Apparently, they also had to modify Vista because of similar concerns, and other complaints lodged by competitors regarding office file formats are pending.
I think these instances show that practices, which in principle are not illegal (such as imposing certain restrictions on products you manufacture) can, under certain circumstances, amount to abuse of a dominant market position illegal under competition/Antitrust law. I don’t know if there are official proceedings concerning specifically the issue you mention; but if Microsoft arbitrarily blocks competing games from running on their consoles, I bet someone in the European Commission or the U.S. Federal Trade Commission has his eyes on this very closely. I also bet that Microsoft has found a way to impose country-specific restrictions - if they are ordered to end these restrictions in one country, they will do so while maintaining them for other countries where they are legal.
ET was for the Atari 2600. Cite It was made by Atari, and was thus entirely legitimate, so I doubt it had anything to do with game licensing. I’d suspect that the semi-pornographic games coming out had more to do with it, or maybe protection of the reputation of the game company.
ET didn’t kill Atari from reducing game purchases, it crippled them because they overproduced it and took a major bath. In any case the 2600 was getting a bit long in the tooth, and the early home computers were eating into the market. There was only so much you could do with that platform. In any case, licensing and console protection would have done nothing to prevent the ET debacle.
You also have to use a development console to work on games for, say, the PS3 (I use this example as it’s what I’m doing right now). The units are something like ten thousand dollars each.
I think this might be more due to their vastly superior technical quality, and to some smash hit games. Asteroid and Space Invaders sold lots of 2600s, and Donkey Kong and Mario sold lots of NES’s. Atari got bought by Warner just before the crash, and they were in a bubble mentality. Nintendo seems to have learned the lesson very well.
I don’t think any company is going to avoid releasing sucky games. They just need to keep from betting the company on them.
Correct. Nintendo allowed third-party publishers to only release a certain number of games a year to prevent the glut of crap that destroyed the Atari 2600.
As for the legality of prohibiting AO content in console games, of course it’s legal. Every third-party has to sign a contract with the console maker before they can publish games on that console (to get the checksum key, as gazpacho said). One of the stipulations of the contract states that the company cannot release an AO-rated game.
The Xbox 360, Wii and PS3 are all closed systems. Nothing can be published on them without Microsoft’s, Nintendo’s or Sony’s approval.
[opinion in GQ]
I’ve heard that Sony’s (and not Nintendo’s like you’d think) approval process for content is currently the strictest.
[/opinion in GQ]
